Factual and procedural background
Michael Szarowicz and Jeremy Birenbaum both participated in a recreational ice hockey league in San Francisco in 2017. The league was a no-contact league, meaning that the players were prohibited from body-checking one another. During a recreational hockey championship game on Jan. 30, 2017, Birenbaum and Szarowicz were on opposing teams. The league that their teams played in was for teams of the next to lowest skill level. Szarowicz’s team, the Icehounds, was ahead by five points during the final minutes of the game. The puck shot across the ice towards the bench where the players sat, and Szarowicz followed it. He intended to hit it toward the opposing team’s goal. Birenbaum had been guarding the goal when he took six strides across the ice towards Szarowicz. As Szarowicz turned to hit the puck, Birenbaum collided with him, causing him to be tossed into the air and fall to the ice. He was knocked unconscious for a few moments but was eventually able to get up and to be helped off of the ice. He remained on the bench until the game’s end. He was then taken to the hospital and was found to have suffered extensive injuries, including six rib fractures, three fractures in his shoulder, a shoulder dislocation, a sternum fracture, a scapular fracture, and a collapsed lung.
Szarowicz filed a lawsuit against Birenbaum, alleging that Birenbaum intentionally struck him during a no-contact game. In the alternative, he argued that Birenbaum acted with negligence. Sarowicz requested compensatory and punitive damages in his lawsuit.
Birenbaum filed a motion for summary judgment or summary adjudication. He argued that Szarowicz’s claim was precluded by the primary assumption of the risk doctrine. Birenbaum argued the body-checking is an inherent risk of playing ice hockey and that Szarowicz assumed the risk that he would suffer injuries when he chose to play the game. He argued for summary adjudication on Szarowicz’s request for punitive damages, arguing that there was no evidence that Birenbaum had acted with malice.
Szarowicz opposed the motion for summary judgment. He argued that whether Birenbaum acted intentionally or with malice was a triable issue of material fact. During his deposition, Szarowicz testified that he had started playing hockey at age four and continued through high school. He didn’t play ice hockey in college but started playing again as an adult. While he had played an estimated 2,000 games, Szarowicz testified that all of his experience had been in no-contact leagues. Szarowicz also acknowledged that the league’s rules stated that it was a no-check league but that hockey is a contact sport. He testified that he had witnessed Birenbaum cross-check a teammate earlier and had asked him why Birenbaum was angry. Later, he testified that Birenbaum had cross-checked him but that he had failed to tell the referee.
Birenbaum called an expert who testified that hockey is a contact sport. He also testified that a no-check league has rules for different types of contact. He testified that Birenbaum’s conduct might have been aggressive but was not outside the realm of what can be expected during an ice hockey game.
Szarowicz’s expert testified that different levels of physical contact are used in different types of hockey leagues. He testified that body checking is not allowed in recreational non-contact leagues. He also testified that no-contact leagues expose players to a much lower risk of injury and that people who choose to play in those leagues do so because of the minimal risk. He also testified that in his experience in no-contact leagues, he had never seen a player suffer injuries to the extent that Szarowicz did from normal play.
The director of the league submitted a statement that what Birenbaum did would be illegal under even professional ice hockey standards. Three teammates of Szarowicz also testified in opposition to Birenbaum’s motion.
The trial court issued an order on Nov. 7, 2018, in which it granted Birenbaum’s motion for summary judgment and summary adjudication. The court found that body-checking was an inherent risk of playing non-contact ice hockey and that the primary assumption of the risk doctrine applied. Szarowicz filed an appeal.
Issue: Whether the primary assumption of the risk doctrine applies to a sport with no-contact rules when a player intentionally or negligently body-checks another and injures him during a game?
Birenbaum argued that the trial court was correct when it granted summary judgment. He argued that the primary assumption of the risk doctrine applied because ice hockey is a physical sport and that Szarowicz understood the risks when he decided to play the game. Szarowicz argued that the primary assumption of the risk doctrine did not apply under the circumstances since it was a no-check league. He also argued that an exception exists when a player engages in intentional conduct to injure others and that there was a triable issue of material fact about whether Birenbaum had acted intentionally and with malice.
Rule: The primary assumption of the risk doctrine is an exception to the general rule that people have a duty to avoid engaging in actions that could injure others. When people choose to play sports, they assume the risks of suffering injuries due to the game’s inherent risks.
Under Knight v. Jewett, 3 Cal.4th 296 (1992), individuals are expected to use care to avoid injuring others. However, the court recognized an exception to the general rule when people are injured while they are engaged in sports. When the primary assumption of the risk applies, it serves as a complete bar to the plaintiff’s ability to recover damages in a personal injury action.
The appeals court began by examining the primary assumption of the risk doctrine. The court noted that while defendants do not have a duty to protect people from the inherent risks of a sport, they do have a duty to avoid acting in a manner that increases the risks of playing the sport beyond its inherent risks.
The court then considered whether Birenbaum’s actions increased the inherent risks of playing a game of no-contact ice hockey. Birenbaum argued that body-checking is an inherent risk and pointed to his expert’s testimony in support. However, the court found that the testimony of Szarowicz’s expert, the league’s director, and his three teammates all presented enough evidence for a court to question whether Birenbaum’s actions were intentional. The court found that a jury could determine that Birenbaum’s high-speed race across the ice to body-check Szarowicz was intentional.
The court found that Szarowicz had presented enough evidence to show that triable issues of material fact remained. It reversed the lower court’s decision and returned the case for further proceedings. Szarowicz was awarded his costs on appeal.
Talk to a Los Angeles personal injury lawyer
While the primary assumption of the risk doctrine bars personal injury claims for sports participation, there is an exception when the defendant’s actions cause an increase in the risks beyond what is inherent in a sport. If you have suffered injuries during a game in which someone intentionally acted beyond the scope of what is expected, you may have legal rights to recover damages. Contact an experienced injury lawyer at the Steven M. Sweat Personal Injury Lawyers by calling 866.966.5240.